Uncontested Divorce
According to the Turkish Civil Code, a divorce case can be filed in two ways: uncontested divorce and contested divorce.
Uncontested divorce is the termination of the marriage union by the spouses freely agreeing on issues such as alimony, division of property, and child custody.
Uncontested divorce is stipulated in paragraph 3 of Article 166 of the Turkish Civil Code. Accordingly
According to the Turkish Civil Code, a divorce case can be filed in two ways: uncontested divorce and contested divorce.
Uncontested divorce is the termination of the marriage union by the spouses agreeing on issues such as alimony, division of property, custody of the child with their free will.
Uncontested divorce is stipulated in paragraph 3 of Article 166 of the Turkish Civil Code. According to this article:
“If the marriage has lasted for at least one year, if the spouses apply together or if one spouse accepts the other spouse’s lawsuit, the marriage union is deemed to be shaken from its foundations. In order to grant a divorce in this case, the judge must listen to the parties in person and be convinced that their wills are freely expressed and find the arrangement to be accepted by the parties regarding the financial consequences of the divorce and the status of the children appropriate. The judge may make the changes he/she deems necessary in this agreement by taking into consideration the interests of the parties and the children. If these amendments are accepted by the parties, a divorce shall be granted. In this case, the provision that the parties’ admissions shall not bind the judge shall not apply”.
R.G., dated 08.12.2001 and numbered 24607. (Article 166/3 of the Civil Code No. 4721)
Based on the provision of the article, the conditions for filing an uncontested divorce case can be listed as follows:
The marriage union must have lasted for at least 1 year;
The will of the spouses for divorce must be compatible;
The judge must listen to the parties in person;
The judge must approve the protocol accepted by the spouses;
The agreement must be included in the court judgment.
The marriage union must have lasted for at least 1 year;
According to Article 163/3 of the TCC, in order to file an uncontested divorce case, the marriage union must have lasted for at least one year (Yetik, p.163.). The judge will ex officio observe whether this one-year period has expired or not, and if it has expired, he/she will not be able to decide on an uncontested divorce. The one-year period is the period from the date of the official marriage until the date the divorce case is filed. Therefore, this period starts from the date of the formation of the union of marriage between the parties. According to the jurisprudence of the Court of Cassation, marriage is deemed to have started from the moment the parties declare their mutual and appropriate declarations of will.
From this point of view, it follows that the one-year period begins to run from the moment of the official marriage. As such, the period of religious marriage, engagement or cohabitation is not included in the one-year period.
It is not obligatory for the spouses to have lived together within this one-year period; even if they have never lived together, a divorce case can be filed for uncontested divorce if one year has passed.
The judge automatically investigates the existence of this condition and cannot decide on an uncontested divorce if this period has not expired.
The spouses must have applied to the court together or the lawsuit filed by one spouse must be accepted by the other spouse;
Joint Application
In an uncontested divorce, the spouses must have expressed their will for divorce. This is possible either by the spouses applying together with a joint petition or by the other spouse accepting the divorce case filed by one of the spouses. The joint application is made when the spouses request the court to grant an uncontested divorce with a joint petition.
The “joint application of the spouses” stated in Article 163/3 of the TCC means that the spouses must file the uncontested divorce case together.
Defendant’s Acceptance of the Lawsuit
While the contested divorce case is in progress, the parties can also realize the uncontested divorce by submitting the protocol explaining their will for uncontested divorce to the court or by recording the terms of the agreement in the hearing record during the hearing.
The declaration of acceptance can be made until the judgment is finalized. Provided that there is a special authorization in the power of attorney, the attorney can also make a declaration of acceptance. The declaration of acceptance can be made in writing or orally. Written acceptance can be made with a petition or orally before the court and recorded in the minutes of the hearing. The defendant shall sign the statement of acceptance recorded in the minutes of the hearing after reading it. It is also written in the minutes that he/she has read and signed the statement. Otherwise, the statement shall be deemed invalid. If the defendant accepts, the case ends. The defendant cannot withdraw his/her acceptance. The way of amendment is closed.
The judge must listen to the parties in person and the parties must declare their will for divorce in person before the judge;
The parties must declare their will for divorce in person before the judge. Since divorce is one of the rights strictly attached to the person, the attorneys of the parties cannot declare the will of divorce by taking the place of the parties.
In uncontested divorce cases, the judge must hear the parties in person before the court. Therefore, an uncontested divorce cannot be ruled with the statement of the attorney.
The judge must be convinced that the will of the parties is freely expressed. The parties must convince the judge that they want an uncontested divorce without any pressure. Even if the case is pursued by an attorney, the judge cannot decide on an uncontested divorce if the case is accepted by the defendant but the plaintiff is not heard.
c) The parties must agree on the financial consequences of the divorce and the status of the children:
The judge should find the arrangement regarding the financial consequences of the divorce and the status of the children appropriate;
The issues determined by the parties in the agreement such as material and moral compensation, alimony, custody of children should be found appropriate by the judge. The judge may make the changes he/she deems necessary in the agreement, taking into account the interests of the parties and the children. Only if these changes made by the judge are accepted by the parties, an uncontested divorce can be realized (TMK 166/3). Otherwise, the case turns into a contested divorce case.
- Agreement on the Financial Consequences of Divorce
In order for an uncontested divorce to be granted, the parties must submit an agreement project on the financial consequences of the divorce and the status of the children to the court or have it written and signed in the minutes of the hearing. Even if the parties cannot agree on a single issue, an uncontested divorce cannot be granted.
In order for an uncontested divorce to be granted, the agreement prepared by the parties on the financial consequences of the divorce must be submitted to the court or written in the minutes of the hearing. If such an agreement is not submitted to the court, the proceedings cannot continue. Therefore, a divorce cannot be granted unless an agreement (financial project) is submitted.
The waiver of alimony in the divorce protocol has no legal consequences. After the divorce, the party who is given custody can file a lawsuit and request maintenance.
2- Agreement on the Status of Children
The agreement on the status of children is divided into two parts: the agreement on custody and the agreement on contact. As a rule, within the scope of uncontested divorce, spouses can regulate the custody of children and the duration and form of personal relationship. If the spouses cannot agree on even a single issue, an uncontested divorce cannot be granted. This includes the custody of the children and personal relationship with the children. Even if the spouses agree on the custody of the children and the establishment of personal relationship, the judge must find this agreement appropriate. This is because the rights of children to live in a healthy environment, housing, nutrition and education are rights that concern public order. Even if the parties have agreed on custody, the judge must approve this agreement.
The spouses should also agree on the personal relationship between the non-custodial party and the child. The time, form and duration of the meeting should be explained in the protocol and a full agreement should be reached on this issue.
The plaintiff party may waive the uncontested divorce case at any stage of the proceedings.
SOURCE
Bilgin, E. P., “Agreed Divorce in Turkish Law”, Maltepe University Sosyal
Institute of Sciences Master’s Thesis, 2015).
Ergün, Z., “Divorce”, 2nd Edition, Adil Publishing House, Ankara 2004.
Tekin, H.N., “Agreed Divorce”, Bahçeşehir University Institute of Social Sciences Master’s Thesis.
Yetik, N., “Açık ve Yargıtay Kararları ile Boşanma ve Mal Rejimleri”, 2nd Edition, Bilge Yayınevi, Ankara, 2005.
Yalın, Ş., “Agreed Divorce in Turkish Law”, Istanbul Aydın University Institute of Social Sciences Master’s Thesis, 2017.
https://www.ozdogruhukuk.com/yayinlar/anlasmali-bosanma-davasi-ve-anlasmali bosanma-sureci.html, access date: 11.09.2019.
